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Judgment
Sureshwar Thakur, J.
The complainant/victim, is aggrieved, by the pronouncement, of, an order, of acquittal by the learned trial Court, vis-a-vis the accused, upon, Cr.
Case No. 1412/3 of 2014/2013.
The facts relevant to decide the instant case, are that the complainant lent a sum of Rs.1 lac to the accused in the month of September, 2012. This
amount was to be repaid within one year. He further lent a sum of Rs.72,000/- to the accused in the month of March, 2013, amount whereof was to
be repaid within six months. The aforesaid amounts was advanced in presence of Smt. Pushpa Devi w/o Shri Chet Ram, r/o Sant Niwas, Ambedkar
Colony, Dhalli, District Shimla. The accused gave an undertaking for a sum of Rs.1 lac out of the total amount. The complainant also submits that he
also arranged a sum of Rs.3 lacs for accused on her request, made, through Smt. Pushpa Devi. He further submits that when he demanded the
aforesaid amount, the accused issued a cheque No.072825 of 15.09.2013, in his favour, drawn at Allahabad Bank, Shimla, amount to Rs.1,72,500/-.
The said cheque was returned unpaid on 9.10.2013 with remarks “funds insufficientâ€. The complainant served a legal notice upon the accused
through registered post and it was replied by the accused, however, she failed to defray the cheque amount. Hence the complaint.
A notice of accusation, was, put to the accused by the learned trial Court, for hers, committing an offence punishable under Section 138 of the
Negotiable Instruments Act. In proof of his case, the complainant examined 2 witnesses. On conclusion of recording, of, the complainant's evidence,
the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, wherein, the accused
claimed innocence, and, pleaded false implication, besides she examined two witnesses in her defence.
On an appraisal, of, the evidence on record, the learned trial Court, returned findings of acquittal qua the accused/respondent herein.
The complainant, stands, aggrieved by the judgment of acquittal recorded qua the accused/respondent. He, has concertedly, and, vigorously
contended qua the findings of acquittal recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record,
rather, theirs standing sequelled by gross mis- appreciation of the material on record. Hence, he contends qua the findings of acquittal, warranting
reversal, by this Court in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of conviction.
On the other hand, the learned counsel appearing for the accused/respondent herein, has with considerable force and vigour, also contended qua the
findings of acquittal recorded by the learned trial Court rather standing based on a mature and balanced appreciation, by it, of the evidence on record,
and, theirs not necessitating any interference, rather theirs meriting vindication.
This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on
record.
The accused issued cheque, borne, in Ex.CW1/A vis-a-vis the accused, and, upon its presentation, before, the banker(s) concerned, it, as reflected
in memo Ex.CW1/C, and, in Ex.CW1/C, was hence dishonoured, for want of sufficient funds, in the account(s), of, the accused. Subsequent thereto,
the complainant sent a notice, borne, in Ex. CW1/D, for, hence beseeching the accused to liquidate the amount, borne, in the dishonoured negotiable
instrument. The accused/respondent, has not, denied the existence of her signature(s), on, Ex.CW1/A. The complainant in support of the averments,
embodied, in the complaint, of, his on 9.9.2012, and, in March, 2013, in the presence of, one, Pushpa Devi, respectively handing over to the
respondent/accused, a sum of Rs. 1 lac, and, a further sum of Rs.72,000/-, has, rendered testification(s), bearing consonance therewith. The
testification rendered by the complainant, is, meted corroboration by CW-2 Puspa Devi. The defence as ventilated by the accused/respondent, of hers,
in the presence of, one, Krishan Kumar, who testified, as DW-1, hence liquidating vis-a-vis the complainant a sum of Rs. One lacs-, from amongst, a
sum of Rs.1,72,000/-, borne in Ex.CW1/A, obviously depended upon the testification, of Krishan Kumar. However, the latter omitted, to, purvey his
appropriate corroboration thereto. The effect of the aforesaid defence reared, by the accused/respondent, being hence falsified, (i) also carries the
further effect, of, the further defence, reared by the accused/respondent, of the amounts scribed, in words and figures, in, the dishonoured negotiable
instrument, borne in Ex.CW1/A, being not authored, by her rather being authored by the complainant, (ii) arising, from qua at the time
contemporaneous to hers, purportedly liquidating the sum of Rs.one lac, his not returning to her, three blanks cheques, being also negatived, (iii)
conspicuously with the respondent/ accused, not lending efficacious proof in respect thereof, comprised in hers either making, any apposite testification
in respect thereof nor hers thereafter, instituting an application cast, under, the provisions of Section 45 of the Indian Evidence Act, for, sending the
disputed scribings occurring, in, Ex.CW1/A, to the Handwriting Expert concerned, for the latter being hence enabled, to compare them, with, her
admitted signatures or scribings, (iv) contrarily, with the aforesaid befitting therewith endeavours, rather remaining uncanvassed, by the
respondent/accused, hence, constrains this Court, to conclude, of, the scribings both in words and figures, of the amount, borne, in Ex.CW1/A, being
authored by the respondent/accused, (v) and hence hers prevaricating, the factum, of the complainant/appellant, authoring, the relevant scribings, and,
also her propagation, of hers despite issuing three blank cheques to the complainant, yet theirs remaining unreturned to her, by him, even when she
liquidated a sum of Rs.one lac, to the complainant also hence being ingrained, with, a pervasive vice of falsity.
The penal provisions, occurring, in Section 138 of the Negotiable Instruments Act, for theirs begetting attraction, enjoin, adduction of cogent proof,
(i) qua, the amount, borne in the dishonoured negotiable instrument, comprising, a legally recoverable debt or legally enforceable debt, (ii) contrarily,
upon evidence surging forth, in display of the amount, carried in the dishonoured negotiable instrument, being not, a legally recoverable debt or a legally
enforceable debt or other liability, (iii) thereupon, the mandate of the apposite penal provisions, would remain unattracted nor courts of law, would
render any order of conviction, upon, the drawer of the cheque concerned.
The learned trial Magistrate, had, recorded a conclusion, that, the complainant was engaged in the business of money lending, hence, in the face, of
the provisions, borne, in Section 3 of the H.P. Registration of Money Lenders Act, 1976, provisions whereof stand extracted hereinafter:-
“3. Suits and applications by money-lenders barred, unless money- Notwithstanding anything contained in any other enactment for the time being in
force a suit by a money-lender for the recovery of loan, or an application by money-lender for the execution of a decree relating to a loan, shall, after
the commencement of this Act, be dismissed, unless the money lender, at the time of institution of the suit or presentation of the application for
execution, or at the time of decreeing the suit or deciding the application for execution,-(a) is registered; and (i) holds a valid licence, in such, form and
in such manner as may be prescribed; or (ii) holds a certificate from a Commissioner granted under section 10, specifying the loan in respect of which
the suit is instituted, or the decree in respect of which the application for execution is presented; or (iii) if he is not already a registered and licensed
money-lender, satisfies the court that he has applied to the Collector to be registered and licensed and that such application is pending; Provided that in
such a case, the suit or application shall not be finally disposed of until the application of the money-lender for registration and grant of licence pending
before the Collector is finally disposed of.â€
(i)whereunder an unregistered money lender, is, barred, to enforce his claim, against, his borrower by instituting a civil suit or upon rendition of an
affirmative decree, he is forbidden, to realize the decretal amount, through his casting an execution petition, before, the executing court concerned, (ii)
hence concluded that the amount, borne, in Ex. CW1/A, being, not a legally recoverable debt or a legally enforceable debt, thereupon, pronounced an
order, of acquittal, upon, the respondent/accused. The factual besides evidentiary matrix, for, the learned trial Court, hence, errecting the aforesaid
inference, (iii) is, comprised, in inability, of, the complainant, to, explain the nature of his relationship, with, the accused, (iv) AND also stems, from, his
also acquiescing qua his instituting complaint(s), under, Section 138 of the Negotiable Instruments Act, against, one Ranjna Devi, and, one Basant
Singh, wherewithwhom, he has also not explained, his relationship. However, the aforesaid conclusions, are mis-founded, and, are apparently
surmisally drawn, (v) given the aforesaid Ranjna Devi, and, Basant Singh, not, being cited, as witnesses, by the respondent/accused, for, theirs hence
rendering testifications, qua their borrowing(s), of, money from the complainant, and, his lending vis-a-vis them, also being accompanied by his
charging or levying interest, upon, the principal sum(s). (vi) Also hence, for, theirs rendering testifications, of, in theirs making borrowing(s) from the
complainant, theirs holding, no acquaintance with him, and, that in their relevant borrowing(s), from, the complainant, theirs being solitarily guided by
the factum of his being an unlicensed professional money lender. However, evidence, in regard aforesaid, is grossly amiss hereat, (vii) thereupon, it
was insagacious, for, the learned trial court, to conclude qua the accused, being an unlicensed professional money lender, and, his charging interest vis-
a-vis the money lent by him vis-a-vis the accused, despite, his being wholly unacquainted, with her, or other borrowers. (viii) More so, when PW-2,
espouses, of hers, being well known, to the respondent/accused, also, when the relevant transaction, occurred, in the presence of the wife of the
complainant, besides with the respondent/accused, not making, any testification, qua the relevant borrowings, made by her, from the complainant,
being, a sequel of hers, knowing, the complainant to be engaged in the profession, of, money lending. Furthermore, also when, the borrowings, rather
made, from, professional money lenders, by the latter's customers, enjoin also eruption of clinching proof, qua, charging of interest thereon, by the
money lender, (ix) whereas with no evidence surging forth hereat, in display of the amount, carried in the dishonoured negotiable instrument, also
carrying therein, the apt interest levied or charged thereon. Contrarily, with existence, of, evidence qua the initial borrowings, made by the
respondent/accused, from, the complainant, rather bearing consonance, with, the amount carried, in the dishonoured negotiable instrument, (x)
whereupon, it is apt, to, conclude, of no, interest being charged or levied by the complainant, from, the respondent/accused, in the latter making, hence,
borrowings from him. Corollary thereof, is, it being unbefitting to conclude, of, the complainant, charging or levying, any interest, on the money lent by
him to the apposite borrowers AND hence his being not construable to be a money lender.
Be that as it may, even if assumingly, the complainant, is construable to be an unregistered or an unlicensed professional money lender, and, even
if assumingly, the bar constituted under Section 3 of the H.P. Registration of Money Lenders Act, 1976, is attracted vis-a-vis the purported business of
money lending, carried by the complainant, (i) nonetheless, the bar, is, attracted only, against, institution of a civil suit, and, for realization, through,
coercive processes, of, decrees rendered thereon, (ii) the bar obviously, is, not attracted vis-a-vis, the institution of a complaint, under Section 138 of
the Negotiable Instruments Act, (iii) given non existence of any specific explicit mandate therein qua the bar encapsulated therein, vis-a-vis, institution
of a civil suit, by any unlicensed money lender, for hence his seeking recovery, of, amounts lent by him, to, his borrowers, also being extendable qua
the institution of a complaint under Section 138 of the Negotiable Instruments Act, by a money lender against his borrower. Consequently, omission of
existence, of, an explicit apposite exclusionary mandate, in Section 3 of the H.P. Registration of Money Lenders Act, 1976, against institution, of, a
statutory complaint, by a professional money lender against his borrower, also hence, constrains a conclusion, that, mandate thereof, is, unattractable
vis-a-vis institution, of a statutory complaint, by a money lender, against his borrowers, (a) unless evidence surges forth, of the apposite lending being
provenly, ingrained, with entrenched prohibitive vices, (b) whereupon, alone the lending, would be construable to be, not, a legally recoverable debt nor
a legally enforceable debt, (c) whereas, with no evidence hereat, rather surging forth, qua the sums embodied, within, the cheque, hereat carrying, any,
entrenched prohibitive vices, thereupon, even if assumingly, the complainant, is, a professional unlicensed money lender, yet the lending made by him
vis-a-vis the accused, are, to be construable to be both, a legally recoverable debt besides a legally enforceable debt. (d) More so, when evidently no
proof is forthcoming qua the respective borrowings, being made, subject to levying or charging, of, interest thereon.
For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not appraised the entire evidence on
record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court, suffers, from, a gross
perversity or absurdity of mis-appreciation and non appreciation of evidence on record.
Consequently, the instant appeal is allowed and the judgment impugned before this Court is quashed and set aside Consequently, the
accused/respondent herein, is, convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. She be produced before this
Court on 19/06/2018 for hers being heard on the quantum of sentence.